What are the “Best Interest” Factors?

The court weighs the Best interest factors after a determination of custodial environment has been established. This is because the court must first know the burden of proof (“clear and convincing evidence” or “by preponderance of the evidence”) by which to judge evidence brought by the parties concerning the 12 factors.

The court then weighs these factors to determine what is in the child’s best interest concerning custody or custody changes, and parenting time. Keep in mind that the factors do not have equal weight. The court will determine the weight of certain factors vs. others.

Also, just because your party may have more factors in their favor, does not mean you will necessarily win your motion. The court may give certain factors great weight over the others, like evidence of abuse.

(a) The love, affection, and other emotional ties existing between the competing parties and the child:

This factor focuses on the emotional bonds presented to the court about where the child is at in terms of emotional ties with the parents.

Who does the child look to for love and comfort? Does the child primarily want to be with you?

(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any:

This factor, in contrast to factor (a), looks to the future. It asks the question of what the parties can provide in terms of guidance and religion. The court here will look to your past behavior as an indicator of the future.

So, do you take the child to Church? Have you had the child in SCOUTS? Or have you made efforts to educate the child, besides just sending them to daycare…etc.

(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs:

Here the court will look to the parent’s ability to provide for childcare and other necessities. Essentially, can you the parent take care of the child and provide a roof over his head? Are you able to feed and clothe as well as give the child “good experiences”?

Stay away from strict economics here because the court will most likely value things like stay-at-home parenting, and ability to be home for the child. Also, having more financial stability, but not significantly contributing to your child, can hurt you and be weighed against you.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity:

The court will look to whether the child will have a comfortable and safe place to grow up in.

So how long have you lived in one place? Is this place a safe place? Look at sex offenders and crime rates. Does the child call your home his home?

(e) The permanence, as a family unit, of the existing or proposed custodial home:

This factor focuses solely on the permanence of the family environment, not the acceptability of the home or childcare arrangements. Here the court is likely to penalize those without support structure.

(f) The moral fitness of the competing parties:

The court does not focus on “immoral” actions per se, only how these actions relate to their parenting. So, does one of the parents suffer from drunkenness, vulgarity, or commit criminal acts?

Essentially, look to behavior that would affect the children, not just offend the conscience. Things like having female and male sleepovers would not be of paramount concern, unless the person sleeping over was a sex offender (in that case the parent would be inviting in a sex offender which would potentially harm the child).

(g) The mental and physical health of the competing parties:

Here the court may not have anything to factor because medical privilege will trump disclosure. Just don’t discriminate against those with disabilities! That could implicate other federal and state laws.

(h) The home, school and community record of the child:

Most of the time, the court will look to the school record; how many absences from school, disciplinary actions, or detentions. However, when a small child is involved, ask your self, “can the child continue to attend and do well in school?”

Also, the court may consider whether the child would have to change schools in order to be with the other parent.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference:

This is factor concerns the child’s preference. Generally, the child will tell the judge where he/she wants to live. Additionally, the court will determine the minimum age of the child to be able to testify to this factor. The older the child, the more credible.

Keep in mind, that this factor does not allow for extraneous information, like “mommy is a bad person,” only testimony as to where the child wants to live. Also, the court will conduct this testimony in confidential setting to avoid destroying the other parent’s relationship with the child.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent:

Parents must facilitate a relationship between the child and the other parent. The court will presume that each parent has a right to parent and see their child, the question is just how much and where. If the child does not want to go, then either parent should make the child go for the purpose of the relationship.

Remember, that the court will give significant weight to this factor because of the presumption that parents have a right to see and parent their children.

(k)Domestic violence, regardless of whether the violence was directed against or witnessed by the child:

Has the child been the victim of sexual or physical abuse? The court will certainly look here first and weigh this factor extremely heavily in their consideration of the child’s best interests.

However, often parties overlook whether there has been abuse in the house in front of the child. Has either parent suffered abuse? Are others in the house violent?

(l) Any other factor considered by the court to be relevant to a particular child custody dispute:

Other questions usually concern unique situations. However, courts should never use race as a factor. Further, while the court may entertain biological preference (sex), this consideration should be considered holistically and not with a straight-line rule (ex. males always go with father).

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